Active: Federal lawsuit challenges unaccountable, unconstitutional fishing ban

Like many of his fellow longtime fishermen, Wes Humbyrd draws his catch—and his livelihood—from Cook Inlet. A regulation proposed by the North Pacific Fishery Management Council, however, will permanently close the inlet’s federal waters to commercial salmon fishing, not because of overfishing but because the council deemed it too hard to coordinate management duties with the state. The council’s members wield enormous federal authority, yet are neither appointed as officers of the United States nor subject to appropriate oversight by the president or his officers. Wes and two other fishermen are fighting back to restore accountable government and their right to earn an honest living.

Wes Humbyrd has been a part of Alaska’s commercial salmon industry for 53 years. Like many of his fellow longtime fishermen, Wes draws his catch—and his livelihood—from Cook Inlet.

Located near Anchorage, Cook Inlet connects the Pacific Ocean to major Alaskan rivers. The inlet also has state and federal waters—and escalating tensions over its governance. The result is that the fishery, an economic driver that feeds Alaskans and others in the U.S. and supports decades-long careers, is now controlled by a federal agency that would rather close the fishery than do its job.

Federal and state governments both regulate commercial fishing. Fishery management by the federal government is governed by the Magnuson-Stevens Fisheries Conservation and Management Act, which established regional councils and charged them with regulating federal waters to maximize fisheries’ long-term benefits.

The North Pacific Fishery Management Council is responsible for executing this responsibility in the federal waters of Cook Inlet. But managing the salmon fishery in federal waters would require coordination with Alaska’s management of the fishery in state waters, and the council decided it wasn’t interested in doing that work. The result is a regulation, known as Amendment 14, which will shut down the federal waters to commercial salmon fishing altogether, wrecking Wes’ and the other fishermen’s livelihoods and wreaking economic devastation on surrounding communities.

There is hope for the fishermen, however. The Constitution forbids bureaucrats from exercising significant federal policymaking powers unless they are under the control of the president, meaning he appoints and removes them.

No member of the North Pacific Fishery Management Council is nominated by the president or confirmed by the Senate, as the Appointments Clause requires. The 11-member council is instead composed of seven members nominated by the governors of Alaska and Washington; three state bureaucrats who are also designated by governors; and a low-level federal bureaucrat.

This set-up gives the state of Alaska enormous power over federal policy while skirting accountability and the important quality control function of the Constitution’s appointment process. The result is a council that is more concerned with parochial state politics than doing the work required to responsibly manage federal waters for the benefit of the nation, as the Magnuson-Stevens Act requires.

But because the council was not properly appointed and was thus serving unconstitutionally when it adopted Amendment 14, the regulation itself is unconstitutional. So Wes and two other longtime commercial fishermen are fighting back.

Represented free of charge by PLF, they’re asking a federal court to restore their right to earn an honest living without interference by an illegally formed agency and its equally unlawful regulation.

What’s At Stake?

  • Accountability in the federal government requires the president—the only elected official in the executive branch, along with the vice president—to control powerful federal policymakers so that he can be answerable for their actions. That means the president, not low-level bureaucrats and state governors, must control the hiring and firing of these officials.
  • Officials appointed in violation of the Constitution were never lawfully given their powers. So any actions they take have no legal effect and should be set aside. That includes the destructive regulation in this case.
  • Alaska fishermen should have the freedom to keep their longtime businesses and not see their livelihoods forcibly ruined by an unlawful federal agency and its equally unlawful regulations.

Case Timeline

November 09, 2021
Complaint
U.S. District Court for the District of Alaska